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The participation of indigenous peoples at the United Nations World Intellectual Property Organization has become compromised as the voluntary fund allowing the organisation to invite indigenous peoples representatives is running dry. At the outset of this week’s WIPO committee seeking to produce an international instrument providing protection to traditional knowledge, an indigenous panel mapped out international agreements recognising their specific rights.

On the first day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) taking place from 22-26 April, WIPO Director General Francis Gurry and IGC Vice-Chair Alexandra Grazioli called for members to contribute to the voluntary funds allowing indigenous peoples to participate in IGC sessions.

The voluntary fund is out of money, Gurry said, and “the situation could not be more dramatic.” He said he has written to all potential donors, to no avail. Gurry urged delegations to assist WIPO with the fund in particular “in this critical stage of negotiations in this process.”

Grazioli said the fund was created in 2005 to support the participation of indigenous peoples’ representatives and has benefitted from different contributors including Australia, the Christensen Fund, France, Norway, South Africa, and Switzerland. Beyond IGC 24, there is no longer sufficient funding to cover the participation of any indigenous representative to any future session of the IGC, she said.

“This regrettable situation is a great shame,” said the Swiss delegate, and could have the effect of harming the credibility of the IGC.

The WIPO secretariat has initiated a fundraising drive and also explored other options, such as inviting member states which have funding trust with WIPO to divert some of these funds to the voluntary fund, and have sought the assistance of prominent indigenous peoples representatives to intercede to their governments for funds, without success, as no additional fund have been pledged, she said.

“The situation could not be more dramatic” – WIPO Director General Francis Gurry

The need is financially rather small, she said, as financing five applicants would require about US$18,500. Alternative financing solutions might be explored, and member states might have to consider the possibility of inviting the annual WIPO General Assembly to amend the rules of the fund in order to allow the WIPO budget to contribute to the fund, the vice-chair said, calling member states to consult about “this regrettable situation” with their capitals and their regional groups.

An indigenous panel followed the opening of the 24th session of the IGC. Speakers described the United Nations Declaration on the Rights of Indigenous Peoples and how it should be considered in the IGC discussions, noting that most WIPO members had signed the declaration.

The UN declaration, in Article 31, states that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing art.” Article 31 further states that “They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

It is neither feasible nor wise for the IGC to conclude drafting of the text without due acknowledgement of the rights of indigenous peoples to self-determination, said Robert Leslie Malezer, co-chair of the National Congress of Australia’s First Peoples.

For Lucy Mulenkei, executive director of the Indigenous Information Network in Kenya, indigenous peoples look at resources as part of them and traditional knowledge is a living body of knowledge developed, sustained and passed from generation to generation as part of a cultural and specific identity.

She said the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is expected to help communities try and protect their intellectual property rights and resources and allow fair and equitable benefit sharing. As such, it is important that the IGC consider the Nagoya Protocol, and important for the IGC to involve indigenous peoples in negotiations and thus contribute to the voluntary fund, she said.

Public Domain, Databases, Prejudicial Concepts, Representative Says

Preston Hardison, natural resources treaty rights policy analyst for the Tulalip Tribes of Washington, United States, said the UN Declaration on the Rights of Indigenous Peoples was intended to give states and indigenous peoples the flexibility to work out their own constructive agreements in national contexts, but was not meant to allow the states to have the flexibility to circumvent the intentions of the UN declaration to promote state recognition of indigenous peoples and their rights.

The issue of the public domain has been a sore point in IGC negotiations, as some countries such as the United States and the European Union have raised concerns about protecting knowledge that was already considered as being in the public domain. But Hardison said the public domain is an intellectual property concept, stemming primarily from copyrights. It assumes, he said, that IP law holds supremacy over the regulations of traditional knowledge.

This concept of public domain is prejudicial against sui generis rights, could be prejudicial to inherited rights under human right laws, and deprives indigenous peoples of their right to self-determination over traditional knowledge that has been classified as being in the public domain, he said. Some states, he said, have the ability to “claw back materials from the public domain,” citing a US case Golan v. Holder, in which the US Supreme Court decided in 2012 to restore copyright protection to foreign works found in the public domain, to comply with its obligation under the Berne Convention for the Protection of Literary and Artistic Works.

On databases, which have been proposed by a group of member states (Canada, Japan, South Korea and the United States), as a mean to protect traditional knowledge, Hardison said the proposal to make databases only available to patent offices was a step in the right direction but provides no security from corruption, hacking, leakages or changes in policy and law.

[…] of indigenous peoples representatives in the sessions of the IGC has been drying up for some time (IPW, WIPO, 26 April 2013). Appeals have already been made by the secretariat and some member states, to no […]

[…] But the voluntary fund ran dry and repeated appeals from WIPO Director General Francis Gurry, as well as the IGC Chair, Jamaican Ambassador Wayne McCook, and Alexandra Grazioli of Switzerland, chair of the Advisory Board for the Voluntary Fund, did not prompt any new contribution (IPW, WIPO, 26 April 2013). […]